Legislative Reference Bulletin No. 3 


History of 

The Initiative and Referendum 
in South Dakota 


4^^ Department of History 

i. 

^ Division of Legislative Reference 



Doane Robinson, Sec’y and Supt. 
Ida M. Anding, Librarian 
19 16 



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INITIATIVE AND REFERENDUM IN SOUTH DAKOTA 


The Initiative and Referendum in America originated in South 
Dak., being the invention of Rev. Robert W. Haire, a Catholic priest, 
for the past thirty four years a resident of the city of Aberdeen, who, 
during the time of the ascendency of the Knights of Labor in 1885, 
proposed what he termed the “People’s Legislature,” involving the 
principles of the Initiative and Referendum. He agitated for this 
very extensively until the Swiss system was brought to his attention. 
The Farmers’ Alliance movement followed quickly upon the Knights 
of Labor and Henry L. Loucks, of Watertown, South Dakota, became 
the President of the National Farmers’ Alliance. He took up Fath¬ 
er Haire’s ideas and succeeded in getting them incorporated into 
the principles of the National Farmers’ Alliance. The agitation for 
the adoption of the principles was continued until the Peoples party 
gained control of the South Dakota legislature in 1897, end submit¬ 
ted the present Initiative and Referendum provision to the state con¬ 
stitution, which was adopted by the people at the election held in No¬ 
vember, 1898, by a vote of 23,816 for, to 16,483 against, out of a to¬ 
tal of 75,204 votes cast at the election. That is to say, but 53 per 
cent of the voters at this election expressed their preference for or 
against the Initiative and Referendum. 

The Constitutional provision thus adopted, is in the following 
form and was so drafted by Father Haire; 

ARTICLE HI. _ - 

Sec. 1.^—The legislative power of the state shall be vested in a leg¬ 
islature which shall consist of a Senate and House of Representa¬ 
tives, except that the people expressly reserve to themselves the 
right to propose measures, which measures the legislature shall 
enact and submit to a vote of the electors of the State, and also the 
right to require that any laws which the legislature may have enact¬ 
ed shall be submitted to. a vote of the electors of the State before 
going into-effect (except such laws as may be necessary for the im¬ 
mediate preservation of the public peace, health or safety, support 
of the State Government and its existing public institutions.) 

Provided, that not more than five per centum of the qualified 
electors of the state shall be required to invoke either the initiative 
or the referendum. 

This section shall not be construed so as to deprive the Legis¬ 
lature or any member thereof of the right to propose any measure. 
The veto power of the Executive shall not be exercised as to meas¬ 
ures referred to a vote of the people. This section shall apply to 



municipalities. The enacting clause of all laws approved by vote of 
the electors of the State shall be: “r3e it enacted by the people of 
South Dakota.” The Legislature shall make suitable provisions for 
carrying into effect the provisions of this section. 

Chapters 93 and 94 of the Laws of South Dakota for 1899, con¬ 
tain the necessary legislation to make the Initiative and Referendum 
provision of the Constitution effective. 

Mo attempt was made to put this provision into practical use un¬ 
til after the adjournment of the legislature of 1901, when it was un¬ 
dertaken to refer a bill which had been passed by the legislature 
with the emergency clause attached, as provided by the constitution. 
The matter was carried to the Supreme Court and decided in the 
case of the State vs. Bacon, i4th South Dakota, page 39 4, wherein 
the court dehnes limitations of the provision, and held that an emer¬ 
gency clause is not referable, and that the legislature is the sole 
judge of an emergency. 

The next attempt to invoke the use of the new provision was 
made by the friends of the primary election, just prior to the meeting 
of the legislature of 1905, when a primary election act was initiated 
by the requisite number of petitioners but the Senate of 1905 re¬ 
fused to obey the mandate of the Initiative and the bill Was not sub¬ 
mitted to the voters. 

In the autumn of 1906, j’ust prior to the meeting of the legis¬ 
lature of 19 07, the temperance people initiated a county option bill 
which the legislature of 19 07 submitted to the people. After the 
adjournment of the legislature, three other acts of that session were 
referred, so that at the election held in November, 19 08, the people, 
for the first time, voted directly upon legislaticn. The acts were: 

County option. 

Reforming Divorce procedure. 

Prohibiting Sunday Amusements. 

Protection of Quail. 

Three of these measures were approved but the county option bill, 
having failed of approval, the temperance people immediately ini¬ 
tiated a new county option bill, which was submitted by the legisla¬ 
ture of 1909; live other acts of that legislature were referred. Thus 
at the e'lecion of 1910 the people voted directly upon: 

County option. 

Electric headlights for locomotives. 

Empowering the Governor to remove incompetent or negligent 
officials. 

Licensing embalmers and undertakers. 

Apportionment of State into certain Congressional districts. 

A General Military Code. 

All of the above acts failed to be approved by the peojvle at the 
general election of 1910. 

Duringn'he session of 1911 the Richards Primary election ac»., 
which has now come into national prominence, was initiated and 
submitted, and three acts of that session were referred, and were 
voted upon at the election of 1912. These were: 

The Richards primary election law. 

Electric headlights. 

Herd Law. 

County seat location law. 


I 


All of these acts were approved by the people. 

In 1913 two initiated laws were submitted arid one legislative 
act was referred to the people at the election in 1914 and all failed 
of approval. These were: 

New Primary Election Act. 

Removing restrictions from sale of intoxicants. 

Amending the charter of the Northern Normal and Industrial 
School. 

The legislature of 1913 submitted an amendment to the consti¬ 
tution leaving the percentage of voters required to petition an In¬ 
itiative or Referendum in Municipalities to the legislatve discretion, 
which was not approved. 

The legislature of 1913 also enacted a law definitely prescrib¬ 
ing the return to be made upon petitions for initiative or referen¬ 
dum and prohibiting the circulator of such petitions from receiving 
compensation therefor. It was claimed that there had been an 
abuse in these matters which the new law sought to correct, (Chap. 
202 , Laws of 1913). 

The legislature of 1915 submitted three initiated acts and one 
legislative act has been referred, to be voted upon at the general 
election in 1916. These are: 

Bank guaranty act initiated by the state bankers. Chap. 103. 

Bank guaranty act iniliated by citizens. Chap. 104. 

A revision of the Richards primary initiated by Mr. Richards. 
Chap. 259. 

An act pcrmit!ing a verdict by five sixths of a common law jury. 
Chap. 241. 

The Icgi'slatuie also passed, as emergency measure, a Pri¬ 
mary election act which repeals the initiated Richards primary law 
of 1912. The question at once was raised pertaining to the power 
of the legislature to repeal an act initiated and approved by the 
people, and the matter was taken into the Supreme Court of South 
Bakcta, in the case of State ex rel Richards vs Whisman, 154 N. 
W., 7 07, where the court by unanimous opinion sustained the right 
of the legislature to repeal an initiated act. In this opinion the 
court reversed State vs. Bacon, 14th S, D. 3 9 4, holding that the 
emergency clause cannot defeat a referendum unless an actual emer¬ 
gency, as defined by the constitution, exists. 

Mr. Richards appealed the portion of the decision in State vs. 
Whisman, which holds the right of the legislature to repeal an in¬ 
itiated act, to the Supreme Court of the United States. He promptly 
obtained a writ of error, bringing the decision of the South Dakota 
Supreme Court for review before the Supreme Court of the United 
States, upon the ground that it was in conflict with the provision of 
the federal constitution which guarantees to each state a republi¬ 
can foim of government. No written opinion was filed in the case. 
On March 6th, 1916, the Supreme Court of the United States dis¬ 
missed this writ of error, for “no jurisdiction” upon the principle 
of a long line of decisions of that court holding that the question of 
the existence of a republican form of goveinment in the states is a 
political one to be determined by Congress, and not a judicial one 


for the Courts. A later application for a re-hearing was refused by 
the Supreme Court of the United States. 

It is perhaps without the mission of this division to express an 
opinion upon the success of the Initiative and Referendum in South 
Dakota. From the facts above stated the reader can readily reach 
his own conclusion, but it may be noted that voters have not exer¬ 
cised very careful discrimination pertaining to the merits of acts 
initiated and referred. Usually one popular measure will carry the 
{ pproval of all submitted measures at that election and an unpopu¬ 
lar one will seal the doom of all its running mates. An affirmative 
or a negative psychology appears to control the situation and as pop¬ 
ularly stated, we have either “vote yes” or “vote no” elections. 

July 1st, 1910. 


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1. AND K. STATISTICS 

Table shOAvinji* title of Initiated or Refeired acts, of South Dakota; tlie year siicli were passed by the legislature; the 
Chai)ter iiuiiibei* in session laws of that year; the year of the election when such measure was voted upon; number voting 
for the measure, number voting against it; figures by which it was cari-ied or defeatetl; the total vote cast on governor 




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LIBRARY OF CONGRESS 


0 041 675 507 3 


ADDENDUM. 

On September 12, 1885, Hon. W. H. Lyon, of Sioux Falls, sent the fol¬ 
lowing petition to the Constitutional Convention then sitting in his city. 
This petition establishes Mr. Lyon as a pioneer in the movement for the 
referendum: 

“ I respectfully request that this convention incorporate in this constitu¬ 
tion a provision that all appropriation bills for new public institutions and 
permanent improvements to existing institutions, and all laws of general 
interest to the people, should be drafted by the legislature and submitted for 
the people to enact or reject, at annual or biennial elections, and that the 
legislature be given only the power to pass appropriation bills for the ordin¬ 
ary running expenses of the state, and to enact necessary laws of a local, 
special and private nature, that cannot well be provided for in general acts.” 



